Communication
2707/2015
Submission: 2015.02.23
View Adopted: 2020.03.10
The author is a national of Tajikistan who claims that the State party has violated her son’s rights under article 6 and 7 and her own rights under article 7 of the Covenant, read alone or in conjunction with Article 2(3).
The author states that on 27 June 2009 the author’s son was returning home from the gym, carrying a bad and was stopped by a police patrol who demanded to know the contents of his bag. After he refused, a fight ensued between him and police officers. He was subsequently forced into a police vehicle and taken to the Department of Internal Affairs of Ismoil Somoni.
The author was informed by the police the following day that her son had been drunk and died because of vomiting in custody. The Author was not allowed to see the body or enter into the Department of Internal Affairs where her son was held. Once her son’s body was brought home, she noted several external bodily injuries. These bodily injuries were reflective of being forced into the police vehicle and being severely beaten.
The primary medical results revealed that the author’s son had died of asphyxia – which the author disagreed with. The author requested an investigation to be opened into her son’s death – for negligent conduct. An investigation was opened on 4 separate occasions – but failed each time for lacking the corpus delicti necessary. (This was due to the fact that the Prosecutor’s office stated that there was not sufficient evidence that a crime had been committed to proceed in finding the culprit.)
The second medical report showed that the author’s son had died of a heart attack. Prior to his apprehension, the author’s son did not have a medical history or bodily injuries. The author therein claims that her son died as a result of ill-treatment and torture inflicted by the police.
The author also notes that despite numerous attempts on her part the State Party has failed to conduct an impartial and thorough investigation into the circumstances surrounding her son’s death.
With regards to admissibility, the Committee must decide in accordance with Rule 97 of its rules of procedure, whether this would be admissible under the Optional Protocol.
The Committee have ascertained that the same matter is not being investigated under another procedure of international investigation or settlement. Additionally, the author has exhausted all effective domestic remedies available.
Therefore, as Article 5(2)(a) and (b) have been complied with, the Committee declares that the communication would be admissible.
The Committee has considered the communication in the light of all the information submitted by the parties in accordance with article 5(1) of the Optional Protocol.
The Committee notes the author’s claims that her son had died as a result of the ill-treatment and torture inflicted by the Police in 2007. Furtherly, the Committee notes the two forensic medical examinations that were performed and resulted in two different causes of death. The State party denies any allegations of torture – by providing alternative explanations for the causes of death and for the bodily injuries sustained.
The Committee concluded that, in the light of the State Party’s inability to rely on an adequate and conclusive investigation to rebut the author’s allegations that her son died as a result of the torture he suffered while in custody, and in the absence of further information, that there had been a violation of article 6(1) and 7 of the Covenant with regards to the rights of the author’s son.
The Committee also found that the investigation into the death of the son cannot be considered as having been carried out promptly and effectively and that it was suspended several times. Additionally, the State party had failed to adequately investigate the multiple witness reports of the incident that occurred and instances of excessive use of force by the police officers involved.
The Committee notes that the author’s claim that the ill-treatment and torture of her son while being apprehended and transported by the Police led to the arbitrary deprivation of her son’s life – contrary to the principles enshrined in the Committee’s jurisprudence in Eshonov v. Uzbekistan. Th Committee recalls through its jurisprudence, according to which State parties, by arresting and detaining individuals, take responsibility to care for their life. (Supported by Lantsova v. Russian Federation)
Thus – in recalling General Comment No.31, it stated that when investigations need to be conducted on violations pertaining to article 6 and 7 of the Covenant, the State has the responsibility to ensure that those responsible are brought to justice. Even though this obligation is an obligation of means, and not result – State Parties have a duty to investigate, in good faith and in a prompt and thorough manner.
The Committee also observed that the State party authorities have not indicted, prosecuted or brought anyone to justice in connection with this death in custody, which occurred in highly suspicious circumstances. With reference to the month’s anguish and mental stress, the Committee was therein of the view that the facts presented before it amount to inhuman treatment of the author, in violation of article 7.
The Committee notes that in light of the State party’s inability to rely on an adequate and conclusive investigation to rebut the author’s allegations that her son died as a result of the torture he suffered while in custody, and in the absence of any further information, the facts submitted reveal a violation by the State party of articles 6(1) and 7 of the Covenant with regard to the rights of the author’s son.
As regards to the author’s claims under article 2(3), read in conjunction with articles 6(1) and 7 of the Covenant – the state party had failed in its obligation to properly investigate her son’s death and her own claims under Article 7. The Committee also noted the author’s uncontested claim that she had not been provided with the documents. It recalled that when a case file is inaccessible to the victim’s close relatives the investigation itself cannot be regarded as an effective one. Additionally, the State’s failure to launch a prompt, impartial and effective investigation into the circumstances of the death of the author’s son and the allegations of torture and ill-treatment. On this basis, the Committee concluded that the State party has not provided an effective remedy for the violations of the rights of the author’s son under articles 6(1) and 7, read alone and in conjunctions with article 2(3)(a) of the Covenant.
Pursuant to articles 2(3)(a) of the Covenant, the State Party is under an obligation to provide the author with an effective remedy. Thus, the State party is obligated to take the following, appropriate steps:
Furtherly, the State party needs to take all necessary steps to prevent similar violations from occurring in the future.
//
